LIMITATIONS ON ACADEMIC FREEDOM

The following information is about the limitations of academic freedom and the First Amendment for faculty as generally understood. The University of Oregon’s academic freedom policies are more expansive than is typical.

Limitations within AAUP policy

The AAUP’s 1940 Statement on Academic Freedom and Tenure has set the standard for how colleges, universities, and courts view academic freedom. It is a simple, but expansive, statement. Yet, even the AAUP policy recognizes that academic freedom and the First Amendment rights of faculty at public universities is not unlimited.

Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties; but research for pecuniary return should be based upon an understanding with the authorities of the institution.

Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject. Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment.

College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.

One of the most important restrictions on academic freedom in the classroom relates to the need to not introduce controversial material unrelated to the subject matter. This important caveat is often misunderstood in two ways.

Some faculty mistakenly believe that they cannot discuss any topics that are not germane to the subject matter. For instance, faculty are often asked to encourage their students to register to vote at the beginning of the school year. While registering to vote is not related to organic chemistry, it is also not controversial and it would not be inappropriate to devote a few minutes of class time to the topic.

The second area of misunderstanding is in believing faculty have the unfettered right to speak or teach in any way they want, as long as they focus on the subject of the class. Courts have consistently ruled that conduct that violates institutional prohibitions on discrimination or harassment is not protected by the First Amendment or the principles of academic freedom.

The Bonnell v. Lorenzo case from 2001 has set the standard over the last 15 years. Rachel Levinson, then AAUP’s Senior Counsel, summarized the case in her address at the 2007 Summer Institute:

In Bonnell v. Lorenzo, a federal appeals court upheld Macomb Community College’s suspension of John Bonnell, a professor of English, for creating a hostile learning environment. A female student sued the professor, claiming that he had repeatedly used lewd and graphic language in his English class. While recognizing the importance of the First Amendment academic freedom of the professor, the court concluded that “[w]hile a professor's rights to academic freedom and freedom of expression are paramount in the academic setting, they are not absolute to the point of compromising a student’s right to learn in a hostile-free environment.” Significantly, unlike the speech in Hardy, the court found Bonnell’s use of vulgar language “not germane to the subject matter” and therefore unprotected.

The AAUP’s 1940 Statement also recognizes limits on faculty speech as citizens. These limitations were summarized by the AAUP in 1970:

If the administration of a college or university feels that a teacher has not observed the admonitions of paragraph 3 of the section on Academic Freedom and believes that the extramural utterances of the teacher have been such as to raise grave doubts concerning the teacher’s fitness for his or her position, it may proceed to file charges.

The courts have also recognized limits on the freedom of faculty to speak in the public sphere.

Pickering/Connick and Garcetti Limitations

The right of faculty to speak on matters of “public concern,” inside or outside the classroom, without fear of reprisal has been long recognized by the courts and is a cornerstone of academic freedom. In 1968, however, the case Pickering v. Board of Education, 391 U.S. 563, 568 established a balancing test for weighing the interest of academic freedom against the interest of the institution to operate efficiently and effectively. The test was further refined in 1983 in the case Connick v. Myers, 461 U.S. 138. Today, the test is often called the Pickering-Connick test.

In the private sphere, employers have an almost unlimited right to discipline or fire an employee at will. In these two cases and the cases that have followed them, the Supreme Court ruled that a public employer’s right to discipline and/or terminate an employee is limited by the employee’s First Amendment rights. The Court ruled that when a public employee is speaking to an issue of public concern, the employer’s ability to discipline the employee for that speech must be weighed against the employee’s First Amendment rights.

It is important to note that in Connick, the Court shifted the emphasis to the right of the employer to discipline or fire an employee, away from the right of the employee to speak without interference. Subsequent rulings have followed this pattern.

The Pickering-Connick test requires that courts determine whether the employee’s speech is of “public concern.” There is no First Amendment protection for speech that is not of public concern. Assuming the speech meets the threshold of being of public concern, then the court must balance the interest of the employer in maintaining an efficient and effective workplace and the employee's right to speech. As mentioned above, courts have increasingly given deference to the employer’s rights.

In the case of Garcetti v. Ceballos, 547 U.S. –, 126 S.Ct. 1951 (2006), the Supreme Court ruled that public employees do not have the protection of the First Amendment when they speak as part of their official duties. When public employees speak “pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

The Court did, however, exempt “expression related to academic scholarship or classroom instruction” from their ruling. Seemingly gone, though, was the balancing test for speech outside of academic scholarship or classroom instruction.

Over the last decade, courts have ruled inconsistently on the question of whether the right of faculty to comment on matters of public concern without fear of interference as long as they do not disrupt the workplace still holds.

In 2014, the Ninth Circuit Court found that they did in the case of Demers v. Austin, 746 F.3d 402 (9th Cir. Wash. Jan. 29, 2014). The Ninth Circuit essentially ruled that because Garcetti exempted speech related to “teaching and academic writing,” the Pickering-Connick test must be applied to cases involving faculty speaking or writing on matters of public concern. The AAUP heralded this ruling as a necessary corrective to Garcetti.

A recent Harvard Law Review article, however, finds the authors unpursuaded by the Ninth Circuit’s reasoning. They believe that the Ninth Circuit is out of step with the Supreme Court. They write, "In its effort to create space in the current employee-speech doctrine for the First Amendment’s protection of academic freedom, the Ninth Circuit strayed from the current model of strong deference to employers, including universities, to regulate and discipline internal employee speech." The authors go on to argue that the Court will continue to uphold the value of academic freedom in the classroom and in publishing, while still following Garcetti by holding that matters related to internal administration of a college of university are not Frist Amendment issues.

Institution v. Individual

Limitations on Academic Freedom in the Classroom

The AAUP’s 1940 Statement on Academic Freedom [link to previous section] is the gold standard of academic freedom policies. The principles therein are enshrined in university policies and have been affirmed and reaffirmed in countless court cases.

The second point of the AAUP’s academic freedom policy describes academic freedom in the classroom:

Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject. Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment.

This simple statement contains multitudes and needs to be unwound.

Speech

The speech rights of faculty in the classroom are expansive, but not unlimited. In her 2007 address to the AAUP’s Summer Institute, AAUP’s Senior Counsel Rachel Levinson summarized three court cases that describe the limits of free speech in the classroom.

Hardy v. Jefferson Community College, 260 F.3d 671 (6th Cir. 2001), cert. denied, 535 U.S. 970 (2002) In Hardy, an African-American student and a "prominent citizen" complained about the allegedly offensive language used by Kenneth E. Hardy, an adjunct communications professor, in a lecture on language and social constructivism in his "Introduction to Interpersonal Communication" course. The students were asked to examine how language "is used to marginalize minorities and other oppressed groups in society," and the discussion included examples of such terms as "bitch," "faggot," and “nigger." While the administration had previously informed Professor Hardy that he was scheduled to teach courses in the fall, after the controversy erupted the administration told him that no classes were available.

A federal appeals court concluded that the topic of the class – "race, gender, and power conflicts in our society" – was a matter of public concern and held that "a teacher’s in-class speech deserves constitutional protection." The court opined: "Reasonable school officials should have known that such speech, when it is germane to the classroom subject matter and advances an academic message, is protected by the First Amendment."

Vega v. Miller, 273 F.3d 460 (2d Cir. 2001), cert. denied, 535 U.S. 1097 (2002) Not all courts agree that individual professors have the academic freedom to select the pedagogical tools they consider most appropriate to teach their subject matter. In Vega v. Miller, for example, Edward Vega, a non-tenure-track professor of English, sued the New York Maritime College when the state-run college declined to reappoint him after he led what the college referred to as an "offensive" classroom exercise in “clustering" (or word association) in a remedial English class. The clustering exercise required students to select a topic and then call out words related to the topic. In Professor Vega's summer 1994 class, the students selected the topic of sex, and the students called out a variety of words and phrases, from "marriage" to "fellatio." Administrators found that the professor's conduct "could be considered sexual harassment, and could create liability for the college," and therefore decided not to renew his contract.

Vega argued that the nonreappointment violated his constitutional academic freedom. The federal appeals court sided with the administrators, holding that at the time they made their decision on Vega’s contract, no court opinion had conclusively determined that an administration’s discipline of a professor for not ending a class exercise violated the professor’s clearly established First Amendment academic freedom rights.

The same court has, however, recognized as constitutionally protected a professor’s First Amendment academic freedom "based on [his] discussion of controversial topics in the classroom." Dube v. State University of New York, 900 F.2d 587, 597-98 (2d Cir. 1990), cert. denied, 501 U.S. 1211 (1991). See also Cohen v. San Bernardino Valley College, 92F.3d 968 (9th Cir. 1996), cert. denied, 520 U.S. 1140 (1997), and Silva v. University of New Hampshire, 888 F. Supp. 293 (D.N.H. 1988) (declining to apply institutional sexual harassment policies to punish professor who used "legitimate pedagogical reasons,” which included provocative language, to illustrate points in class and to sustain his students' interest in the subject matter of the course).

Bonnell v. Lorenzo (Macomb Community College), 241 F.3d 800, cert. denied, 534 U.S. 951 (2001) Of course, a professor's First Amendment right to academic freedom is not absolute. As First Amendment and academic freedom scholar William Van Alstyne has said, “There is . . . nothing . . . that assumes that the First Amendment subset of academic freedom is a total absolute, any more than freedom of speech is itself an exclusive value prized literally above all else.” Van Alstyne, "The Specific Theory of Academic Freedom and the General Issue of Civil Liberty," in The Concept of Academic Freedom 59, 78 (Edmund L. Pincoffs ed., 1972). And so, even when courts recognize the First Amendment right of academic freedom for individual faculty members, courts often balance that interest against other concerns.In Bonnell v. Lorenzo, a federal appeals court upheld Macomb Community College’s suspension of John Bonnell, a professor of English, for creating a hostile learning environment. A female student sued the professor, claiming that he had repeatedly used lewd and graphic language in his English class. While recognizing the importance of the First Amendment academic freedom of the professor, the court concluded that “[w]hile a professor's rights to academic freedom and freedom of expression are paramount in the academic setting, they are not absolute to the point of compromising a student’s right to learn in a hostile-free environment.” Significantly, unlike the speech in Hardy, the court found Bonnell’s use of vulgar language “not germane to the subject matter” and therefore unprotected.

Curriculum

Of course, speech rights are not the only area where faculty have academic freedom in the classroom. It is a fundamental principle of academic freedom that faculty have the right to control the content of their lessons. Again, Rachel Levinson:

The right of teachers "to freedom in the classroom in discussing their subject" under the 1940 Statement is inextricably linked to the rights of professors to determine the content of their courses. The AAUP’s Statement on Government of Colleges and Universities provides that faculty have "primary responsibility for such fundamental areas as curriculum, subject matter and methods of instruction." As one commentator noted: "Faculty will always have the best understanding of what is essential in a field and how it is evolving." Steven G. Poskanzer, Higher Education Law: The Faculty91 (The Johns Hopkins University Press 2002). Moreover, the expertise of a professor and a department helps insulate administrators and trustees from political pressures that may flow from particularly controversial courses.

Just as with speech, though, the rights of faculty, especially individual faculty are not absolute. In 1998, the 3rd Circuit Court ruled that faculty did not have a First Amendment right to decide what will be taught in the classroom. In that case, though, an individual faculty member was asserting that he did not have to use the department-approved syllabus. The court indicated that the department-approved syllabus was faculty approved, therefore in compliance with the principles of academic freedom.

In several instances, courts have followed Justice Frankfurter in Sweezy v. New Hampshire (1957) and located the right to control in the curriculum, or to determine what is taught, with the institution, not the faculty member.

The UO’s Academic Freedom policy [https://policies.uoregon.edu/content/academic-freedom-0] addresses the question of classroom curriculum and seems to give control of classroom content to the faculty member in charge of the class.

1.b. TEACHING. The University's responsibility to help students to think critically and independently requires that members of the university community have the right to investigate and discuss matters, including those that are controversial, inside and outside of class, without fear of institutional restraint. Matters brought up in class should be related to the subject of courses or otherwise be educationally relevant, as determined primarily by the faculty member in charge of the class.

Limitations on Academic Freedom in Grading

The academic freedom right of faculty members to assign grades is more complicated. In 1998, the AAUP affirmed the general right of faculty members to assign grades as part of academic freedom, but also allowed that there should be an appeals process. The AAUP recommended that an appeals panel should be composed of faculty in the same or allied fields.

In recent years, however, courts, have issued rulings favoring an institution’s right to change the grade a faculty member has assigned. Many rely on Justice Frankfurter’s reasoning in Sweezy v. New Hampshire (1957) and find that it is the institution, not the individual faculty member, that has the freedom to determine what is taught and how it is taught.

Even in cases where courts have found that faculty have the First Amendment right to assign a grade, they have also ruled that the faculty member has no First Amendment interest in the final grade the student receives, allowing institutions to change the grade after it has been issued.